Prior to taking the vote on February 10, 1989, the prosecutor ascertained that there was a quorum of grand jurors present who had heard the essential testimony, but failed to instruct the Grand Jury that only those who had heard all of the evidence, presented January 25, January 27, and February 9, 1989, could vote.

Upon a motion to inspect and dismiss on the basis of prosecutorial misconduct, the trial court examined the Grand Jury minutes and, while rejecting that claim, sua sponte determined that there was a question as to whether the vote was taken of at least 12 grand jurors who had heard all of the essential testimony. Neither the Grand Jury minutes nor its attendance sheets provided sufficient information to establish that this requirement had been satisfied, and the indictment was dismissed with leave to the People to re-present.

On appeal, the People assert that the trial court's order was issued without fair notice of the specific defect alleged, and without according the People an adequate opportunity to respond. (See, People v Jennings, 69 N.Y.2d 103, 113; CPL 210.45.) In light of the sua sponte grant of dismissal on a ground other than that relied upon by defendant, we reverse and remand to permit the People to establish full compliance with CPL 190.25 (1).

Concur — Carro, J.P., Ellerin, Ross, Asch and Kassal, JJ.